FEDERAL COURT OF AUSTRALIA

Jatin v Minister for Immigration and Border Protection [2019] FCA 150

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the respondent’s costs referred to in paragraph 2.

4.    In the absence of any agreement pursuant to paragraph 3 of these orders, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

5.    Within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

6.    In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs referred to in paragraph 2 be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    The appellant appeals from the orders of the Federal Circuit Court dismissing his application for judicial review on a single ground of appeal. The ground concerns an allegation that the way the Administrative Appeals Tribunal conducted its review hearing means the review, or part of it, was affected by an apprehension of bias. The Federal Circuit Court did not accept his arguments: see Jatin v Minister for Immigration [2018] FCCA 966.

2    For the reasons set out below I consider the Federal Circuit Court was correct to dismiss the application for judicial review.

3    The subject matter of the review before the Tribunal concerned the cancellation by a delegate of the Minister of the appellant’s subclass 573 (Higher Education Sector) visa under s 116(1)(b) of the Migration Act 1958 (Cth). As the Tribunal set out in its reasons, the delegate found the appellant did not satisfy one of the mandatory criteria to continue to hold his student visa. The appellant conceded before the Tribunal that having been granted his visa on 14 September 2012, after December 2012 he had not been enrolled in a higher degree course and had only received a letter of offer from Cambridge International College to study for a Bachelor of Business (Management) on 9 January 2015. In between those times the appellant did not dispute as a matter of fact before the Tribunal that he was not enrolled in a higher degree course. The failure by the appellant to comply with this condition enlivened the delegate’s discretion, and on review the Tribunal’s discretion, to consider whether or not his visa should be cancelled.

4    Once the discretion was enlivened, it was common ground the Tribunal had a broad discretion whether or not to decide it was appropriate to cancel the visa. As the Tribunal explained at [11] – [12] of its reasons:

The evidence before the Tribunal shows that the applicant was not enrolled in a higher education course from December 2012 and that the applicant only received the offer of enrolment in a Bachelor’s course on 9 January 2015. The requirement in condition 8516 is for a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. Given the applicant was not enrolled in a higher education course and was not the subject of a current enrolment in such a course; he has not continued to satisfy cl.573.231 as he was no longer an eligible higher degree student, nor had a requisite confirmation of enrolment nor was enrolled in a principal course specified for Subclass 573 visas. The Tribunal finds that he therefore failed to comply with condition 8516.

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

5    The delegate’s decision was made on 2 July 2014 and the Tribunal conducted a hearing on the review of that decision on 6 August 2015. The appellant’s challenge to the Tribunal’s decision substantially concerns what occurred at that review hearing.

6    Before the Federal Circuit Court, and on appeal before this Court, the appellant submitted that the way in which the Tribunal conducted the review hearing was sufficient to give rise to a reasonable apprehension of bias on the basis of prejudgment. The applicant relied on conduct such as the Tribunal allegedly interrupting the appellant and not permitting him to complete a narrative or explanation he was trying to give and a number of specific comments during the hearing.

7    The Federal Circuit Court rejected those arguments, finding that the Tribunal did no more than give the appellant “an insight into its concerns” and an opportunity to respond to them: see [40] of the Federal Circuit Court’s reasons. The Federal Circuit Court went on to find that the Tribunal member clarified issues of concern with the appellant, and “was wrestling” with the appellant’s narrative of what he had done in the past and how it reflected on his evidence that the was going to complete his studies as he contended: see [48] of the Federal Circuit Court reasons. Finally, relevantly, the Federal Circuit Court distinguished the outcome of the Full Court’s decision in Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227; 256 FCR 1, a case in which the Full Court found a hearing was affected by apprehended bias, having regard to the cumulative effect of numerous interruptions by the Tribunal and numerous instances where the Tribunal “shut down” the evidence of the applicant.

8    There was no substantial debate between the parties about the applicable principles on judicial review to determine whether the conduct of an administrative decision -maker gives rise to a reasonable apprehension of bias, although counsel each emphasised different aspects of the principles in support of their respective arguments. As those principles apply to a decision of the Tribunal, taking into account the relevant provisions in the Migration Act, they are with respect helpfully set out by the Full Court in Sharma at [21]-[25]:

The applicable principles relevant to the circumstances of this appeal are not in issue and can be stated as follows. Apprehended bias is shown if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring a fair and impartial mind to the making of the decision: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson, McHugh, Gummow and Hayne JJ). This test is the same for judicial and administrative decision-makers but its content in terms of what is expected of that decision-maker may often differ according to the type of decision-maker: Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, at 460 per McHugh J and at 480 per Kirby J. Especially that can be so where the function being discharged is purely administrative rather than judicial or, as here, quasi-judicial (notwithstanding that the Tribunal’s merits review function is strictly administrative). The outcome of the present appeal does not turn on any particular difference in content.

In Johnson v Johnson (2000) 201 CLR 488 at [53], Kirby J said that the reasonable bystander: “would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers”. His Honour continued:

The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

The test for apprehended bias is only satisfied if the lay observer might reasonably apprehend that the decision-maker might have embarked on the case with a closed mind, that is to say, a mind not open to persuasion or, expressed another way, a mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. But that is not to say that a decision-maker must be free of a preliminary reaction or an inclination for or against an argument or conclusion.

The present case underscores that position because under the statutory regime in question the Tribunal will only embark on a hearing when it is unable to decide the application in favour of the applicant: s 360(2)(A) of the Act. Further, the Tribunal, in the performance of its statutory task of review under the Act is not precluded from testing the applicant’s case by posing questions which challenge the version of facts put forward by the applicant. That questioning may be robust and even confrontational. The reasonable bystander must also be taken to know that the Tribunal is entitled to express doubts about the answers given by the applicant in order to provide the applicant with the opportunity to supply further explanations. Robust questioning or the expression of doubt designed to allow the applicant to respond do not necessarily raise an apprehension of bias because they do not necessarily demonstrate that the decision-maker is determined in a view against the applicant. That said, the nature and extent of questioning and the expression of doubt may amount to a level that gives rise to a reasonable apprehension that the Tribunal might have a fixed or unalterable attitude.

The nature of the assessment by the Court of whether a hearing is affected by apprehended bias is governed by the need to strike a balance between competing requirements of the legal system. On the one hand, a too demanding a standard for decision-makers will have a chilling effect on the exercise of their function as independent decision-makers. Thus, the Court must not approach the reasons of a decision-maker with an overly critical attitude which zealously seeks to establish error. On the other hand, a too lax a standard applicable to decision-makers will threaten the confidence of the public and parties in the fairness of the process of the system.

9    I respectfully agree with that summary of the applicable principles. In an inquisitorial setting such as that before the Tribunal, it is important that the Tribunal is able to express doubts it has about an applicant’s evidence or the consistency of narratives or explanations given by an applicant, or the reliability of information or other material presented to the Tribunal. If the Tribunal does not test that material, there is no one else to do so. If the Tribunal does not make an applicant aware of its concerns, its concerns may go unaddressed and unanswered.

10    It may well be that the principal method by which an applicant can have a full opportunity to persuade the Tribunal it should be satisfied of the position he or she seeks to advance, is for an applicant to be informed of the matters which trouble the Tribunal, or which the Tribunal might currently consider to be adverse to the success of the review for the applicant. The more that a Tribunal engages with an applicant about potential difficulties or matters that may not be readily understandable, the more opportunity is given to an applicant to set the Tribunal right and to assist the Tribunal to understand the evidence that has been given. That is a core function of procedural fairness, and of the proper discharge of the Tribunal’s review function.

11    On the other hand, as the authorities disclose, there will be a line – to be drawn on findings of fact on judicial review by a court based on the evidence and circumstances of each particular case – beyond which the Tribunal inquisitorial method trespasses into prohibited areas. That may be because the Tribunal’s questioning becomes intimidatory, or bullying, or suggests cross-examination to secure particular concessions from an applicant which would be unfair. It may be because the nature of the questioning or its style, suggests the Tribunal has prejudged the outcome of the review as a whole or certain aspects of its fact finding, denying an applicant the fair hearing to which she or he is entitled. The evidence may prove that during the very opportunity the applicant has for persuasion, the Tribunal has already closed its mind. All these matters will require careful consideration of the evidence before the reviewing Court: in particular, the Tribunal’s reasons and any transcript of the review hearing, together with any evidence of persons present at that review hearing, including (but not limited to) the applicant. See for example the evidence given in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; 131 FCR 102 by the applicant’s lawyer and migration agent who was present at the Tribunal hearing.

12    In VFAB, Kenny J referred to what had been said by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982. Kenny J said (at [27]):

In Ex parte H, the court took account of the fact that the proceedings of the Tribunal were inquisitorial in nature and that the parties cannot be represented in the same manner as they are in a court, remarking, at [31]:

Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question …

Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.

13    Those observations are apposite in the present appeal.

14    In oral submissions, counsel for the appellant correctly emphasised that a review hearing is an applicant’s opportunity to put forward material and evidence, not simply the Tribunal’s opportunity to inquire. Counsel emphasised that the recognition of the Tribunal’s role as inquisitorial does not give it licence to trespass on accepted principles of apprehended bias. I accept those submissions, but I consider they are addressed in what I have set out above. The question is always what the Court determines the evidence establishes about the approach taken by the decision-maker, in light of the applicable principles.

15    It can also be accepted as counsel for the appellant contended, that the “double might” approach must be borne in mind, and that it does not impose a threshold of probability which reaches the level of a court needing to be persuaded it is more likely than not that a reasonable bystander “would” have the relevant apprehension. I have borne that caution in mind.

16    The Minister’s submissions emphasised the distinction made in some authorities between a closed mind and an open mind in terms of a mind that is not “empty”: see in particular the observations of the Full Court in Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223 at 236 [38]-[39], citing The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]. That distinction assumes some significance on the evidence in this appeal. Given the nature of the Tribunal’s comments, its mind was clearly not “empty”, and during the hearing it was plain it had formed some views of the appellant’s explanations for not being enrolled in a higher degree course, and for changing courses. For reasons I develop below, there is no basis to find that a reasonable bystander might apprehend the Tribunal’s mind might not be capable of persuasion out of those preliminary views.

17    At the hearing of the appeal, counsel for the appellant initially indicated some reliance might be placed on the audio recording of the Tribunal review hearing. However, counsel eventually made it clear that, for the purposes of the way the argument was put, the transcript was as good for the appellant’s argument as the audio. Accordingly, I have not listened to the audio recording.

18    In oral submissions, counsel frankly conceded the appellant “did not have a great case” before the Tribunal, but he submitted the appellant did have one good point: namely, that he had received poor advice, and had taken it, and this explained the delays and changes of courses. Counsel submitted the appellant’s contention is that a bystander might have apprehended, at the time of the Tribunal review hearing, that the Tribunal member’s mind was closed to the availability of that argument to assist the appellant in persuading the Tribunal not to cancel his student visa. Whether or not the Tribunal accepted the appellant’s explanation was material to the outcome of the exercise of power. I accept the last proposition.

19    Both counsel took the Court during the appeal to the material passages of the transcript of the review hearing before the Tribunal and I refer to those below where necessary.

20    In the present case, having examined the transcript of the Tribunal hearing, and considered the parties’ submissions, I do not consider the Tribunal’s approach to the review gave rise to any apprehension of bias on its part. Rather, I consider the Tribunal was doing no more than the Full Court in Sharma at [24] contemplated it would do. Different Tribunal members will perform their task in different ways: a reasonable bystander would appreciate this. Some will be robust and frank, others will be more circumspect. A reasonable variation in style is to be expected and in my opinion a reasonable bystander would appreciate that. In this case, the Tribunal member was forthcoming, frank and quite emphatic. That was a matter of style and did not cross the lines to which I have referred above. Further, a reading of the whole of the transcript reveals the Tribunal member gave the appellant ample opportunities to give further information or explanations. I am not satisfied a reasonable bystander, looking at the way the whole of the hearing was conducted, not just a few parts of it, might have the apprehension for which the appellant contends.

21    I do not accept the appellant’s submission that the Tribunal precluded the appellant from advancing evidence in support of his case, or cut him off inappropriately or in a way that prevented him from giving explanations he wanted to give. Rather, in the face of reasonably vague evidence from the appellant, the Tribunal attempted to focus his mind on issues of particular concern to it and to invite him to give it a further explanation. As the Minister submitted, the best example of this, and something that occupied much of the review hearing, was the Tribunal’s attempt to have the appellant focus on its concern about why the appellant had moved from a bachelor degree course at a well-established University to a Certificate IV course, and one that appeared less relevant to the appellant’s stated intention of going back to India to assist his father in the business of running a hotel there. It is apparent the Tribunal was sceptical about the appellant’s explanation of saving money, and it was open to it to adopt the attitude it did to the appellant’s explanation during the course of the hearing. In doing so, the Tribunal gave the appellant a chance to understand its preliminary views, and to deal with them.

22    The Minister made the following submissions, which I accept accurately reflect the way the Tribunal proceeded:

8.1.    At the start of the hearing, the Tribunal member explained that he “take a fresh look at all of [the] evidence, and then I’ll make a decision on your application” “It’s unlikely that I will make or tell you that decision today.” “I will try and do so as soon as I can after the hearing.” (AB 129)

8.2.    Then, the Tribunal member questioned the appellant about the courses that he was originally enrolled in, being a Diploma of Business at Perth Institute of Business Technologies (PIBT), leading to a Bachelor of Business at Edith Cowan University. The appellant said that he wanted to do a Bachelor Business to help his father with his business (AB 131-132).

8.3.    Then, the Tribunal member questioned the appellant about why he ceased those studies. The appellant said something about being advised by a “lawyer” that he could study a “Certificate IV” course instead for “less fees”, and that he could “save money”. But he said that he was enjoying his original course at PIBT. And he said that he was not having trouble paying his fees at PIBT (AB 133-134).

8.4.    Then, the Tribunal member squarely focussed the appellant’s attention on its concern about why appellant’s changed down to a Certificate IV level course (AB 136). “[W]hy did you do that? You’ve just given me a very convincing explanation of why you wanted to study a Bachelor of Business. You said that your dad runs a hotel in India. You think that more study in the area of business will lead to greater prospects for you and for your family business. You said that you had decided that Edith Cowan was a good university, and you’d decided that Perth was a good place to live, and you would then come here. And then, four months later, you meet someone and change your mind about all of those things.”

8.5.    The appellant suggested that his decision was influenced by the advice of the lawyer. But the Tribunal sought to understand why that advice was persuasive to him. The appellant said: “[The lawyer] said, like, ‘You can save money if you want.’ Everyone wants to save his money, so (indistinct)” (AB 136). The appellant said “the study would be the same”, but the Tribunal suggested that “it clearly wasn’t the same”. The Tribunal continued to press the appellant to give any further explanation as to why he wanted to change down to a Certificate IV level course (AB 137).

8.6.    Then, there was a discussion about the interactions between the appellant and different providers, and the Department, around this time about his study and visa status (AB 137-145). At the end this discussion, the Tribunal indicated that it appeared on his evidence that he had breached his visa condition by failing to enrol in a bachelor’s level course. The member said: “So if we proceed on the basis that it appears that there are grounds for cancellation of the visa, the next question I have to answer is whether the visa should be cancelled.” “So what I’m suggesting is that we have now a conversation about some of the things we’ve already spoken about, and anything else you’d like to raise which you think goes to why your visa should not be cancelled. I will explain to you some of the concerns I have which may weigh against that, and may indicate that the visa should be cancelled. Does that make sense.” (AB 145)

8.7.    Having identified at a general level what some of his concerns were, the Tribunal member said: “So I’d like to talk about some of those things today. That doesn’t mean that you can’t tell me anything that you think would indicate that your visa should not be cancelled. So you’re completely open to mention anything at all that you think is important to that.” (AB 146)

8.8.    Then, the Tribunal identified one of its “concerns” as the period in which the appellant was not enrolled in a higher education course. The appellant referred to being “misguided”. The Tribunal member said: “So given what you’ve already told me, I don’t find the claim that you’ve been misguided very convincing at all.” The member said that he was “not sure” he could “accept that”, and explained in more detail its concern. In particular, the member said: “I’m not sure I accept that, because you haven’t explained to me why you did those things. You’ve said, ‘I was misguided, I was misguided.’ That’s not really a reason. That might be a part of the reason, but you haven’t explained why you changed course; why you, from finding that Edith Cowan is a good university, finding out that you wanted to do a Bachelor of Business to help your father, and that that level of education, you considered, would give you greater benefit: all of these things indicate to me that you are a reasonably intelligent young man, that you have done some research; that you’ve thought about these things. So then, when you say, ‘I was going along fine at PIBT, but then a lawyer came along and told me to do something different, and so I did that,’ that’s not – I don’t really understand that.” (AB 146)

8.9.    The Tribunal then continued to ask questions that invited the appellant to explain his behaviour. Why did he study hospitality when he came to Melbourne? Why did he change his plan from studying a Bachelor of Business? (AB 147)

8.10.    Then, the Tribunal then sought to further explain its concern, and invite the appellant’s response. “So one of the things I look at, and that does cause me some concern when I’m considering whether someone is a genuine student is whether they’ve transferred from a high-cost to low-cost courses, and whether they have a low completion rate for the period of time that they’ve been in Australia, and held a student visa, in your case, until July 2014. When I look at the period of time – it’s a reasonable period of time – you haven’t completed any courses. You also transferred from a high-cost bachelor course to a low cost vocational education course. So that causes me real concerns about whether you are actually a genuine student. Do you want to say anything about that?” (AB 147)

8.11.    The appellant’s response to that question was, again, that the lawyer had advised him he could save money. But he also appeared to confirm that he did not have financial difficulties. At that point, the Tribunal member said that his explanation “doesn’t make any sense”. The appellant said that “everyone wants to save his money”. But the Tribunal member said: “No, I don’t think that’s true. I think people want to spend their money on a variety of things. Saving them might be one of the things they want to do. They might also want to get a quality education from an educational institution like Edith Cowan. So I’m not sure it follows that because you met a lawyer who said ‘Save your money’ that you stopped studying at Edith Cowan – or towards study at Edith Cowan University. Given everything you’ve told me about you, and what you wanted to achieved, that doesn’t make sense.” (AB 148)

23    A reasonable bystander would understand that the factual context on this review was that the appellant’s claims to have been misguided by a lawyer were being put forward as explaining his non-enrolment in a qualifying course that met the visa conditions for a period of 3 years, as well as explaining his decision to withdraw from Edith Cowan University. The level of questioning by the Tribunal, and the nature of the questioning, needs to be seen in that factual context.

24    There are examples of exchanges between the appellant and the Tribunal member which can readily be described as robust. It is true that the Tribunal member was actively questioning the appellant about the explanations he was giving, and making it clear to the appellant that the Tribunal was presently not persuaded by them. There is nothing unlawful about that process and indeed, for the reasons I have set out, it is precisely the kind of process that might properly be undertaken on a review hearing. Here, unfortunately for the appellant, the answers he gave to the Tribunal did not satisfy it.

25    It may be accepted that at some points in the transcript the Tribunal could be characterised as talking across the appellant while he was giving an answer. The Tribunal is in control of its review and, with the boundaries I have described earlier in these reasons, is entitled to conduct the review in a way that assists it to focus on the issues it considers to be most important on the review. It is not obliged to listen without interruption to whatever an applicant wishes to say. The transcript of this review hearing demonstrates the Tribunal was attempting to focus the appellant on particular issues and it was entitled to do so. I do not accept the appellant’s argument that the Tribunal was cutting the appellant off in a way that gives rise to an apprehension it had prejudged the outcome of the review.

26    It is also true, as the Minister’s submissions recognised, that some of the Tribunal’s remarks to the appellant during the review hearing could be described as sceptical. There is nothing unlawful about the Tribunal expressing scepticism, provided it does not cross the kind of lines which I have outlined above.

27    Some exchanges between the Tribunal and the appellant are argumentative. The exchange about whether “everyone wants to save money” is an example:

MEMBER: And you haven’t completed any courses here? So one of the things that I look at, and that does cause me some concern when I’m considering whether someone is a genuine student is whether they’ve transferred from high-cost to low-cost courses, and whether they have a low completion rate for the period of time that they’ve been in Australia, and held a student visa, in your case, until July 2014. When I look at that period of time – it’s a reasonable period of time - you haven’t completed any courses. You also transferred from a high-cost bachelor course to low-cost vocational education courses. So that causes me real concerns about whether you are actually a genuine student. Do you want to say anything about that?

WITNESS: (Indistinct response.)

MEMBER: Sorry?

WITNESS: (Indistinct) changing high-cost to low-cost?

MEMBER: Yes.

WITNESS: Because, as I told you, like, the lawyer told me, “You can save money.” Everyone wants to save money, so that’s (indistinct words).

MEMBER: But you haven’t told me that you had financial difficulties.

WITNESS: I haven’t had any financial (indistinct).

MEMBER: So that explanation doesn't make any sense, Mr Jatin.

WITNESS: But, like, everyone wants to save his money (indistinct words).

MEMBER: No, I don’t think that’s true. I think people want to spend their money on a variety of things. Saving them might be one of the things they want to do. They might also want to get a quality education from an educational institution like Edith Cowan. So I’m not sure it follows that because you met a lawyer who said "Save your money" that you stopped studying at Edith Cowan - or towards study at Edith Cowan University. Given everything you’ve told me about you, and what you wanted to achieve, that doesn’t make any sense.

28    The appellant’s counsel submitted the Tribunal could have chosen other language, less indicative of a closed mind. The authorities make it clear the reasonable bystander is to be attributed with some knowledge about the nature of the forum in which the decision is being taken. Here, the forum is a busy Tribunal, working through a lot of hearings. I find the reasonable bystander would understand the language used by the Tribunal and would see it as robust, and perhaps not “best practice”, but would understand the context. It may be desirable, in a perfect world, for a Tribunal member to be less argumentative, to always be calm, to couch everything she or he says with care and discretion. However, Tribunal members operate in a real world, not a perfect one. I am not persuaded that the reasonable bystander might apprehend the Tribunal’s remarks as indicating the member had closed his mind to the explanation being given by the appellant at this point.

29    A further factor, not of great weight, but relevant, is that the Tribunal did not make its decision straight away. Its decision was made some 11 days or so after the hearing: cf the facts in Sharma at [67]. I consider apprehensions formed by a reasonable bystander would be affected by listening to or reading the closing parts of the review hearing , where the Tribunal made the following kinds of remarks (this being a sample and not all of them and with my emphasis):

When I look at that period of time - it’s a reasonable period of time - you haven’t completed any courses. You also transferred from a high-cost bachelor course to low-cost vocational education courses. So that causes me real concerns about whether you are actually a genuine student. Do you want to say anything about that?

30    And statements such as:

Is there anything further that you would like to add today about why you think the visa should not be cancelled?

31    And:

MEMBER: I will think very carefully about everything you’ve told me, and about all of the concerns I’ve raised today. I’ll weigh those things and come to a decision, firstly about whether there was breach by you of condition 8516, and therefore, whether the ground for cancellation arises. If I decide that that is the case, I will then weigh the information I have, to decide whether the visa in your case should be cancelled or should not be cancelled. I will try and make that decision as soon as I can after the hearing, and that may be later today. All right, thank you. Is there anything else you would like to say?

WITNESS: No.

32    These statements, together with the fact the Tribunal did not make a decision on the review for approximately 11 days after the hearing (despite its closing remarks), are probative against the apprehension for which the appellant contends.

33    I am not persuaded a reasonable bystander looking at the whole of the hearing might apprehend the Tribunal might bring a closed mind to the question of whether the appellant’s visa should be cancelled.

34    I note for completeness that counsel for the Minister submitted that the references in the appellant’s oral submissions in particular to the terms of s 360 of the Migration Act should not be taken to raise any ground of denial of procedural fairness outside the apprehended bias ground. Counsel for the appellant confirmed this was the case, and noted that this reference to s 360 was only to provide context for the task of the Tribunal on the review.

35    There is no error in the Federal Circuit Court’s orders by reason of its failure to accept the appellant’s arguments concerning apprehended bias. The appeal should be dismissed, with costs.

36    The parties submitted at the close of the appeal hearing that the Court should deal with the question of costs after it has determined the outcome of the appeal. Accordingly, directions will be made for that to occur.

Associate:

Dated:    19 February 2019